State v. Birmingham

Decision Date30 April 2004
Docket NumberNo. 25610.,25610.
Citation132 S.W.3d 318
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Harold Craig BIRMINGHAM, Defendant-Appellant.
CourtMissouri Court of Appeals

Daniel T. Moore and John M. Albright, Moore, Walsh & Albright L.L.P., Poplar Bluff, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen. and Stephanie Morrell, Office of the Attorney General, Jefferson City, for respondent.

KENNETH W. SHRUM, Judge.

Harold Birmingham ("Defendant") appeals his conviction for possession of a controlled substance in violation of section 195.202.1 Defendant contends the trial court committed reversible error when it denied his motion to suppress certain statements and evidence and allowed their admission into evidence during his jury trial. In addition, Defendant argues that, in the absence of the statements and evidence which should have been suppressed, the State failed to present sufficient evidence to sustain his conviction.

We agree that Defendant's statements were erroneously admitted, but we disagree that the physical evidence should have been excluded. We reverse the judgment of conviction and sentence and remand the case for a new trial.

STANDARD OF REVIEW

"At a suppression hearing, the State bears both the burden of producing evidence and the risk of non-persuasion to show by a preponderance of the evidence that the motion to suppress should be overruled."2 State v. Bradshaw, 99 S.W.3d 73, 76[2] (Mo.App.2003). In reviewing a trial court's ruling on a motion to suppress, the appellate court considers the record made at the pretrial hearing as well as the trial testimony. State v. Haldiman, 106 S.W.3d 529, 533[4] (Mo.App.2003). "In so reviewing, we view the facts in the light most favorable to the order challenged on appeal." Bradshaw, 99 S.W.3d at 76[4].

Appellate review is limited to a determination of whether substantial evidence exists to support the trial court's ruling. State v. West, 58 S.W.3d 563, 567[1] (Mo.App.2001). The trial court's decision will be reversed only if it is clearly erroneous, leaving this court with a definite and firm impression that a mistake has been made. Haldiman, 106 S.W.3d at 533[2]. Furthermore, an appellate court must defer to the trial court's superior ability to adjudge the credibility of witnesses and make factual findings, but whether a constitutional violation occurred is a question of law. Id. at 533[7]; West, 58 S.W.3d at 567[4].

FACTS

Ron McCroy ("McCroy") was a probation and parole officer for the state of Missouri assigned to Wayne County. Johnny Brannum ("Brannum") was a deputy sheriff for the Wayne County sheriff's department. On June 27, 2002, McCroy and Brannum sought to arrest Defendant for a parole violation.

Armed with an arrest warrant, McCroy and Brannum contacted Defendant at his residence. McCroy knocked on the door, and Defendant answered, clad only in "boxer shorts" or "something to that effect." McCroy described the events as follows:

"When I arrived [I] knocked on the door. [Defendant] answered the door. He was in some boxer shorts. I told him to get his clothes on, he was coming with us."

....

"He just kind of looked at me, turned around and started walking through the living room, and I proceeded to follow him back to his bedroom."

Brannum confirmed this testimony and stated that he followed McCroy into the house. Brannum testified that he followed McCroy for security purposes.

As Brannum walked through the living room, he looked into the kitchen area, and he saw, in "plain view," items which he believed to be drug paraphernalia, namely a straw, a razor blade, and a piece of glass. After seeing the items, Brannum continued walking to the bedroom in order to make sure McCroy was secure. After Defendant and McCroy appeared from the bedroom, Brannum handcuffed Defendant and "set [him] on the couch."

Brannum did not read Defendant his Miranda rights while at Defendant's house, either before or after handcuffing him.3 Brannum explained that he had not anticipated questioning Defendant at that time.

On the other hand, McCroy did question Defendant. McCroy's questions to Defendant came after he had been handcuffed and ordered to sit on the couch. In answering McCroy's questions, Defendant stated that "he was going to cut open the straw and get out the residue and use it."

Thereon, Defendant was "placed in the patrol car and brought ... back to the courthouse, sheriff's department." McCroy's office was also located at the courthouse.

On July 8, 2002, McCroy questioned Defendant again, but this time at McCroy's office. McCroy's stated purpose was "to get his statements regarding the violations that I arrested him on the warrant and the new charge." McCroy testified that the only rights he was required to tell Defendant were as follows: "[T]hey have the right to remain silent [and] anything they say will be placed in a violation report to the Parole Board." Again, Defendant admitted to possessing the items taken from his kitchen and acknowledged he had planned to get the residue out of the straw for personal use.

Laboratory tests revealed that the straw seized from Defendant's kitchen contained a small amount of methamphetamine, although the weight was never determined. Defendant filed a motion to suppress his statements to parole officer McCroy and the physical evidence seized from the kitchen. The trial court overruled his motion as well as Defendant's timely objections at trial.

After hearing all the evidence, the jury convicted Defendant of possession of methamphetamine. The trial court sentenced him as a persistent drug offender to twenty years' imprisonment. This appeal followed.

Point I: Admissibility of Defendant's Statements to McCroy

In his first point on appeal, Defendant alleges the trial court committed reversible error when it allowed his statements to McCroy to be introduced as evidence before the jury. In essence, Defendant's point is very simple: The undisputed evidence shows that neither of his statements to McCroy were preceded by the Miranda warnings; thus, they cannot be used against him in this criminal proceeding.

Generally stated, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Custodial interrogation refers to questioning initiated by law enforcement officers. State v. Werner, 9 S.W.3d 590, 595[3] (Mo. banc 2000). For an interrogation to be custodial, the questioning must occur "after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.

In determining whether a suspect is "in custody," courts must examine the totality of the circumstances, including the suspect's freedom to leave the scene and the purpose, place, and length of interrogation.4 Werner, 9 S.W.3d at 595. These principles likewise apply to a situation wherein a parole officer questions a parolee about a new or distinct felony, i.e., the officer must "give the parolee all four of the Miranda warnings, where he has been arrested and taken into actual police custody." State v. Williams, 486 S.W.2d 468, 474[6] (Mo.1972).

Defendant's motion to suppress alleged, inter alia, that his statements to McCroy were inadmissible because he was not read his Miranda rights before being questioned. When the trial court overruled Defendant's motion, it did so without explicitly stating its reasons. On this record, however, the only possible justification for not suppressing Defendant's statements to McCroy would be evidence showing that Defendant was not in custody when McCroy questioned him. This follows because, under Williams, 486 S.W.2d at 474, Defendant was entitled to a full Miranda warning from McCroy if Defendant was in custody at the time of McCroy's interrogations.

The State concedes the obvious, i.e., that Miranda warnings must precede custodial interrogations. They also concede that the first statement (uttered at Defendant's home) was inadmissible. The State argues, however, that Defendant was not "in custody" when he made his second statement at McCroy's office. Consequently, the State claims that the Miranda warnings were not required prior to the second statement. The State then argues that harmless error resulted from admitting the first statement because it was identical to the second statement.

The problem with the State's argument and the trial court's ruling, however, is that both presume—without the benefit of any evidence on the subject—that Defendant was not in custody when McCroy conducted the second "interview" of Defendant in McCroy's office. Stated otherwise, there must be evidence that Defendant was "not in custody" when McCroy questioned him to render the Miranda warnings inapplicable. Defendant correctly points out that there is no such evidence in this record.5

Moreover, the State bore the burden of showing that Defendant's motion to suppress should be overruled. Bradshaw, 99 S.W.3d at 76[6]. Once Defendant challenged the admissibility of his statements for lack of the Miranda warnings, the State had to prove by a preponderance of the evidence that the statements were admissible, either because the full Miranda warning was given or because the Miranda warnings were not required. State v. McWhorter, 836 S.W.2d 506, 507[1] (Mo.App.1992); State v. Hayes, 637 S.W.2d 33, 36 (Mo.App.1982). Here, the State adduced no evidence demonstrating that Defendant was not "in custody" when he made his statement to McCroy. As such, the State has failed to meet its burden of proof.

Consequently, the implicit ruling (noncustodial interrogation) by the trial court is not supported by substantial evidence. The court clearly erred when it admitted Defendant's statements taken in violation of Mi...

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